Print Archive

Courts routinely miscalculate pre-judgment interest, thereby failing to fully restore injured parties. Because pre-judgment interest can be substantial—often rivaling or even exceeding the underlying award—errors in its calculation are important and may create distorted incentives, promote opportunistic behavior, and suppress investment and economic activity. These errors often stem from reliance on speculation to determine the costs covered by interest. This Article argues that such speculation is unnecessary. The litigation claim is identified as the asset which has burdened the injured party with risks and costs imposed by the wrongful act, eliminating the need to rely on a hypothetical asset to estimate costs. From this premise, one can derive the appropriate rate of interest required to restore the claimant to the position he or she would have occupied absent the harm. Grounded in empirical evidence and established financial principles, this framework offers a rigorous and practicable alternative to prevailing methodologies.

Textualism has gotten a bad rap, at least insofar as employment discrimination law is concerned. Derided by antidiscrimination scholars as an interpretive smokescreen concerned less with faithfully construing statutory text than reliably yielding pro-employer results, textualism is understood to pose an existential threat to employment discrimination law. This Article challenges academic orthodoxy by demonstrating that, in practice, textualism is correlated with employee-favorable outcomes. Specifically, the Article examines a subset of the Supreme Court’s major employment discrimination cases over the past thirty years and finds that textualism is twice as likely to be associated with outcomes benefiting employees than it is with outcomes benefiting employers. It then considers this finding’s implications for an atextual evidentiary framework that has bedeviled employment discrimination plaintiffs for more than half a century: the multi-step, burden-shifting regime of McDonnell Douglas Corporation v. Green.

Private credit, a financing method where non-bank lenders provide loans to predominantly middle-market businesses, has experienced exponential growth since the 2008 financial crisis, with its offerings, client base, and collaborations with other market participants expanding significantly. Recent trends highlight regulatory acceptance of this growth and increased interconnectedness between private credit and the broader financial industry, as private credit firms form numerous new partnerships with traditional lenders and deposit-taking institutions. These developments have raised concerns about systemic risk, the potential for financial instability in private credit to spread to the broader financial system, and how to deal with increased exposure to this type of risk. This Comment examines the history, growth, and systemic risk implications of private credit, proposing a regulatory framework or “system” designed to mitigate the negative spillovers of these developments. This system emphasizes enhanced disclosure requirements, stricter capital reserves, leverage limitations, restrictions on certain investment activities, and covenant drafting to ensure financial containment of the systemic risks associated with private credit.

The music industry is highly concentrated at multiple stages along the production chain between the Big Three music group conglomerates (Universal, Sony, and Warner) and the three largest streaming services (Spotify, Apple, and YouTube). The Big Three and the streaming services have extensive vertical arrangements, from the Big Three having ownership stakes in the largest streaming services to their contracts for the streaming services’ algorithms to prioritize Big Three artists. This resembles historical radio era payola arrangements. This double layer of market concentration and the arrangements between music production and distribution primarily harm musicians, who lack the bargaining power to negotiate for better contracts or terms with either the Big Three or the major streaming services.
This Comment evaluates the reasoning behind, and outcomes of, radio era payola arrangements, compares these historical arrangements to the modern digital streaming era, and considers modern payola in the context of recent trends in antitrust law jurisprudence. Congress’s solution of required disclosure for radio era payola largely failed to substantially improve access to the radio for smaller artists and labels, and would likely fail again if attempted for the modern music streaming distribution system. In recent years, however, courts and regulators have utilized an increasingly holistic antitrust analysis with a growing focus on labor-side harms and vertical integration. The growing openness to labor-side concerns and the heightened scrutiny recently placed on vertical integration should weigh heavily in favor of musicians and independent labels in courts’ rule of reason analyses. These newly emphasized concerns provide new lenses for analyzing the modern music industry structure and payola and suggest a solution to Congressional inaction.

The rapid advancement of generative artificial intelligence (AI) is testing the limits of Section 230 of the Communications Decency Act, a statute that has long shielded online platforms from liability for user-generated content. This liability shield helped shape the modern internet, but AI’s ability to create its own content blurs the traditional distinction between platforms acting as passive hosts and those functioning as active publishers. As a result, courts and lawmakers are reexamining the scope and future of Section 230. This Comment examines how proposed reforms to Section 230 could impact startups and emerging tech companies that use generative AI in their products and services. It argues that broad rollbacks or carve-outs from Section 230 protections would impose disproportionate burdens on smaller companies, exposing them to increased litigation risks, major compliance costs, and crucially, barriers to innovation. Using a comparative analysis of existing proposals, caselaw, and international AI regulations, this Comment introduces a hybrid tiered liability framework that scales regulatory obligations based on company capacity and the risk level of the AI application. The framework’s goal is to hold companies accountable without stifling innovation for smaller market entrants. As a result, this model offers a balanced path forward for regulating generative AI content in the digital age.

Democrats and Republicans strongly disagree about climate policy. This Article explains how these political disagreements can affect greenhouse gas emissions of private-sector corporations. Combining a hand-collected dataset tracking the careers of U.S. state governors over two decades and a proprietary emissions database, I find that companies release more greenhouse gas emissions when their headquarter state has a Republican governor. To establish a causal connection between gubernatorial partisanship and corporate emissions, I analyze the effect of close elections. After a Republican replaces a Democratic governor in a closely contested election, which cannot be easily predicted in advance, companies headquartered in that state increase their greenhouse gas emissions. These empirical results are consistent with anecdotal evidence that companies face significantly more pressure from Democratic governors to adopt climate-friendly policies than from Republicans. Companies may increase carbon emissions during Republican rule because they anticipate that these governors are less likely to propose new climate regulations or enforce existing environmental laws.

The Article’s findings have three major legal and policy implications. First, it suggests that managers may use discretion over business operations to cater to the preferences of powerful politicians, in both shareholder- and stakeholder-centric models of corporate governance. Second, the empirical analysis in this Article suggests that voluntary pledges by corporations to reduce pollution have limited effect. Elections have consequences for corporate emissions, and voluntary corporate actions may not suffice to reduce pollution as long as approximately half of state governors are skeptical about climate change mitigation. Thus, the findings raise questions about whether corporate social responsibility (CSR) is an effective substitute for a broader political consensus on climate change mitigation. Finally, this Article provides a novel justification for mandatory corporate disclosure of greenhouse gas emissions. Investors, equipped with information about firms’ climate impact, will be able to push managers to become more prosocial and diminish the magnitude of the political carbon cycle, assuming that investors are willing and able to use that information.

The Capital Market doesn’t get much love these days. It is viewed with suspicion in many quarters, and graduates who take jobs related to finance are described as “selling out.” Rather than defending them on their own terms, many seem to think that they are valuable as a means to achieve other—largely unrelated—social goals. This Article, adapted from a pair of lectures in the first quarter of 2024, pushes back against these perceptions. It explains the vital role that the capital market plays in our society and cautions against grafting on secondary objectives. Rather, efforts to regulate the capital market should focus on furthering its primary function so as to promote the common good it already serves.

Bad actors launder dirty money through cryptocurrency non-custodial service providers, including cryptocurrency unhosted wallets, non-custodial mixers, and decentralized exchanges (DEXs). Unlike banks and other traditional financial intermediaries, these providers do not take custody of payment assets. Therefore, the Bank Secrecy Act (BSA) cannot require them to comply with its substantive obligations, such as monitoring and reporting of suspicious payment activities associated with money laundering. As a result, law enforcement agencies are unable to obtain useful reports and records to effectively investigate money laundering and prosecute bad actors.

To address this issue, this Article analyzes how cryptocurrency non-custodial service providers, despite not taking custody of payment assets, can retain a certain degree of controlling power over payment assets in three key dimensions: (1) clearing and settlement, (2) asset ownership, custody, and balance sheet recording, and (3) governance. This Article argues that the BSA should cover some of the cryptocurrency non-custodial service providers that can retain a certain degree of controlling power over payment assets. This Article argues that the BSA’s definition of “money transmitting business,” which merely considers the second dimension, is unable to accurately measure the collective degree of control a cryptocurrency service provider has over payment assets, namely cryptocurrencies. As such, this Article argues that the BSA should measure the collective degree of controlling power a service provider has over payment assets through all three dimensions. These three dimensions serve as variables within this framework: the more variables present, the greater the degree of collective control a provider has over cryptocurrency payments, and the more likely it is to fall within the scope of the regulatory perimeter of the BSA.

This Article analyzes recent developments in European corporate law to argue that a Corporate Law Competition is emerging in the EU. For nearly half a century, scholars in the U.S. have engaged in a debate about a Corporate Law Competition between U.S. states and its various implications. In the late 1990s and the early 2000s, the European Court of Justice rendered a series of liberalizing decisions that broke with the long-standing prohibition on corporate mobility in the EU. Despite these judgements, scholars generally assert that there is no Corporate Law Competition among EU member states. This Article challenges such consensus by arguing that two recent examples demonstrate that a Corporate Law Competition among EU member states is finally emerging. It analyzes how this emerging Corporate Law Competition works and how it shapes corporate law development in the EU. In doing so, it also identifies the major differences of the competitive dynamics in the EU compared to the U.S. This Article first presents the theoretical and practical frameworks of a Corporate Law Competition both in the U.S. and the EU. It then explores two recent case studies in corporate law developments in the EU, namely the increasing reincorporation of Italian companies to the Netherlands and the incorporation of German SPACs in Luxembourg. The Article then examines these case studies to construct the dynamics of the demand and supply sides of the emerging Corporate Law Competition in the EU. It develops the argument that in both fact patterns, the general limitations to EU Corporate Law Competition have been overcome. Based on this analysis, the Article assesses public policy implications and argues that there is no race to the bottom to be expected for Corporate Law Competition in the EU.

The federal government’s most powerful tool for combating fraud is the False Claims Act (FCA). The statute targets individuals and entities that submit fraudulent claims for government funds, particularly in healthcare—where it addresses Medicare and Medicaid fraud—and in government contracting, including defense industry overpayments. FCA violators must repay up to three times the government’s losses, along with additional penalties. A key feature of the FCA is its qui tam provision, which allows private citizens, known as relators, to sue violators on behalf of the United States. The statute incentivizes whistleblowing by granting relators 15% to 30% of any successful recovery. However, FCA relators have faced constitutional challenges that threaten the statute’s most significant enforcement mechanism. The FCA’s critics, many of whom are motivated by the unitary executive theory, argue that relators wield such significant authority that they qualify as “Officers of the United States” under Article II of the Constitution. If relators are deemed officers, they must be formally appointed, which would render the FCA’s qui tam provisions unconstitutional. One interpretive principle is the canon of constitutional avoidance, which guides the Court to construe statutes to comport with the Constitution unless they are incompatible. This comment argues that there are plausible interpretations across interpretive modalities to harmonize the FCA and Article II. First, the FCA’s purpose was to incentivize private whistleblowers to assist the government with combatting fraud. The FCA does not transform a relator into a government official, so relators cannot be “Officers of the United States” as established in the Supreme Court’s modern case law. A line of cases interprets “Officers of the United States” as government officials with “significant decision-making authority.” While the FCA affords relators some decision-making authority throughout a given proceeding, such as whether to initiate the suit, the Executive maintains sufficient control of the case to direct it according to its policy goals. This includes intervening as the plaintiff in the case and vetoing any settlement offer. Second, recent scholarship uncovering the original public meaning of “Officers of the United States” calls the Supreme Court’s jurisprudence on the issue into question and supports the position that FCA relators are not officers in need of appointment. Many of the FCA’s fiercest critics are originalists. Given that there are plausible, constitutional interpretations of the FCA, courts should construe the FCA to avoid striking it down. The FCA remains constitutionally sound, and its relators should continue serving as a crucial tool in protecting the federal government from fraud. Preserving the FCA’s qui tam provisions is essential to maintaining a robust anti-fraud enforcement mechanism that safeguards public funds and deters misconduct.

Traditional shareholder agreements are used by shareholders to contract amongst one another and address how the shareholders will collectively exercise their shareholder-level rights. However, “new wave” shareholder agreements are between a corporation and a shareholder. Such agreements are highly popular in practice and often used to maintain a preferred shareholder’s control over corporate decision-making even after the shareholder’s voting power has been diluted. In February 2024, the provisions of a “new wave” shareholder agreement were invalidated by the Delaware Chancery Court in West Palm Beach Firefighter’s Pension Fund v. Moelis & Co., and the Delaware legislature promptly responded, adding Section 122(18) to Title 8 of the Delaware General Corporation Law in August 2024. Section 122(18) further advances Delaware’s commitment to contractarianism and provides broad authorization for “new wave” shareholder agreements. One of the most interesting questions raised by the amendment is whether a minority shareholder, otherwise lacking significant voting control or the ability to exercise the equivalent of majority voting control, may be deemed a controlling shareholder due to the contractual rights held under a Section 122(18) agreement. First, this Comment provides a background of the legal landscape leading to the addition of Section 122(18). Second, this Comment analyzes the potential fiduciary implications presented by Section 122(18) agreements for corporate directors and shareholders. Lastly, this Comment argues that a contracting shareholder should not be deemed a controlling shareholder nor owe corresponding fiduciary obligations because of contractual rights granted to the shareholder under a freely negotiated Section 122(18) agreement. The contractual rights bargained for by a shareholder under a Section 122(18) agreement exist independently from the shareholder’s fundamental shareholder-level rights as a stock owner, and as such, should not be considered when determining whether the shareholder is a controller.

Contemporary financial supervision depends on knowledge about risk. Threats to bank soundness and financial stability abound, but they present themselves in amorphous ways. How should supervisors assess their significance? This Article examines a process being employed by the Federal Reserve (Fed) to assess threats posed by climate change.